Accused convicted of offences including aggravated sexual assault. Post-conviction application for a mistrial. Defence had discovered a witness, who if capable of belief, might of cast doubt on the complainant’s version of events.
Held: Application dismissed.
Test regarding the mistrial application informed by the general rules followed on an application to adduce fresh evidence on appeal: (1) the evidence was unavailable at trial; (2) the evidence must be relevant to a decisive issue; (3) the evidence must be reasonably capable of belief; (4) the evidence must be capable of affecting the outcome of the trial: Ibrahim, 2010 ABCA 375. The witness in the present case was found to have concocted his evidence. “Simply put, Mr. Wilcox has no credibility”. Accordingly, third branch of the test was not met.
T. Engel – Defence Counsel